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From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Monday, 3 September 2012

A few days ago theIPKatdevoted some of its feline time considering what may happen to one's own digital libraries upon death.

As readers will promptly remember, the problem is that, whilst analogue copies of books and music may well pass into the hands of one's own heirs upon death, the same may not happen in the case of digital (eg iTunes or Kindle) libraries. In fact, the purchaser of digital works just gets a licence to use the digital files, but does not actually own them. This implies that, since no ownership rights are acquired, the use of digital files are limited to the devices used by the account holder, who cannot therefore transfer his/her licence to third parties, not even upon his/her death.

It was foreseeable that such state of affairs would have ended up annoying someone. When that “someone” is Die HardheroBruce Willis, this means that issues surrounding "Death & Digital Libraries" have become thrilling – not to say (invariably) explosive - ones.

As reported byThe Sun, the popular actor is apparently getting ready to take Apple to court to clear things up as to what is going to happen to his huge digital music collection after he dies. Willis has declared that, by going down the judicial route, he wishes to clarify the nature and limitations of downloaders' rights.

Bruce is not impressed by iTunes policy

In parallel with court proceedings, Willis has also asked advisers to set up a trust for his tunes in favour of his daughters Roumer, Scout and Tallulah.

This Kat has already observed that current legal and judicial scenario does not help to predict the potential outcome of a dispute dealing with this problem. What is almost certain is that, should Mr Willis decide to bring proceedings against Apple, his challenge would attract huge publicity.

New Stateman holds the view that Bruce Willis would not succeed in court. This is because:

What do you think
will happen?

“For Willis to win, he would most likely have to get the contract[with Apple]declared unenforceable, which would have far more wide-ranging effects than merely letting him pass music on to his daughters. For one, it would open the door to used sales of digital media, but it would also severely limit the ability of businesses to control how their digital goods are used. Whether this is a good thing or not depends on whether those businesses then change their offerings. But, as one example, would Adobe continue to sell student editions of their software if[US]first sale doctrineallowed those students to resell the software at will?”

There are relevant precedents by US courts, such asVernor v AutodeskandMDY v Blizzard, in which it was held that the grant of a licence is not tantamount to a transfer of ownership. However, there has been a recent decision which may (perhaps) support a conclusion to the contrary. In its 2011 ruling in UMG v Augusto, the US District Court for the Ninth Circuit recalled in fact that "the mere labeling of an arrangement as a license rather than a sale, although it[is]a factor to be considered,[is]not by itself dispositive of the issue[as to whether the first sale doctrine may apply]".

What are the chances of success of Mr Willis’s potential lawsuit in your opinion?

4 comments:

I believe the chances of success are low, even though I believe that justice is on the side of the user:Copyright extends 70 years after death of the author, (and the works become "free" afterwards).Thus a customer should rightfully expect that a usage time of the bought or licensed or sham-licensed intellectual property, which - from my point of view, in terms of consistency of law - is then also intellectual property of the new/additional proprietor created by whatever contract - is at least said "own life plus 70 years" period. As at that time the works are "free" any limitation to the right of use after that point in time would be unjust as well.

Also I've never seen an express time limit in these "licenses", thus I think it's fair to say that they are to be deemed perpetual. And "lifetime of a user" is a time limit. When the rights holders want to impose limits on the time of use they should be explicit and not implicit. Everything else is just a contract offered in bad faith.

From the "asymmetric contract in bad faith" perspective a plausible outcome could be to reverse the contract, i.e. "Bruce receives his money back but has to give back or delete the music.

Maybe it's time for legislation to clarify things in favour of the general public.

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